P L D 1964 Dacca 368 (PLP)

SATTAR, J.‑The appellant Muhammad Aslam who was at the relevant time a Permanent Way Inspector under the East Bengal Railway (now Pakistan Eastern Railway) was placed on trial before the Special Judge, Central, Camp Bogra and the accusations against him were that while working as Permanent Way Inspector of Bogra Section between March 1949 and February 1950, he was entrusted with and had dominion over railway materials such as rails 3,016 ft. dog spikes 10,624, fish bolts 1234, sleepers sal bridge 786 valued at about Rs. 6,832 which he dis honestly misappropriated and could not make over to P. W. 6 M. K. Zaman who succeeded him in February 1950. The defence of the appellant was that he was not guilty and that he did not commit any act of misappropriation to respect of any railway materials which were under his control.

2. The learned judge has found that the accused had dominion over 3,016 ft. of rails and found him guilty of mis appropriation of the same. With regard to the other materials, his conclusion, however, was that the prosecution could not prove its case. In that view of the matter, the learned Judge convicted the appellant under section 409, Pakistan Penal Code, and sentenced him to rigorous imprisonment for three years and to pay a fine of Rs. 7,500 in default to undergo rigorous impri sonment for a further period of six months. He also directed that if the fine was realised, a sum of Rs. 6,832 would go to the Pakistan Eastern Railway. It is not in dispute in this case that the appellant as Per manent Way Inspector of Bogra had under his control certain Railway material which he was supposed to use in maintaining the railway track, the bridges, the level crossings and gates in fit condition.

3. The prosecution evidence is that the materials were kept in Yards which were being watched and looked after not only by railway employees under the Watch & Ward Department but also the Choukidars. Further evidence in this case is that the accused had his Assistants such as Store Tindel and Assistant Permanent Way Inspector.

4. The important question that arises is whether the prosecu tion has been able to prove entrustment with regard to 3,016 ft. of cut rail pieces. If it be found that the prosecution has succeeded in establishing entrustment, then the further question will be whether the prosecution has been able to establish dis honest misappropriation of the said materials by the accused.

5. The gravamen of a charge under section 409, Pakistan Penal Code, is dishonest misappropriation or dishonest conversion of property or dishonest use or disposal of that property in violation of any direction of law prescribing the mode in which a property which is entrusted to a person is to be discharged, or action in violation of any legal contract, express or implied, which the person concerned has made touching the discharge of such trust.

6. The only evidence against the appellant to show that he had dominion over 3,016 ft. of cut rail pieces is the Return submitted by the appellant (Exh. 4) for the month of January 1950. This Return was submitted by him on the 26th of January 1950. In that Return it is stated that the appellant had 3,016 ft. of cut rail pieces.

7. Before we come to consider to what extent this statement proves the entrustment of the said material with the appellant, it is worthwhile to note that the appellant took charge as Permanent Way Inspector of Bogra in March 1949, from his pre decessor S. M. Hossain. The papers regarding taking over charge by him from Hossain have not been produced by the prosecu tion, though called for by the accused. It is in evidence that in April 1949 P.W. 4, a Travelling Inspector of Accounts, actually veri fied the stock under the appellant and found that there was a short age of 3,351 ft. of cut rail pieces. This witness in his evidence has stated that after this was detected he corrected the Return for the month of April 1949, on the basis of the actual verification made by dim. He has further deposed that after detection of the shortage he prepared stock sheets in triplicate and a copy of those stock sheets must have been sent to the accused for his explanation with regard to the discrepancies. The prosecution has not pro duced the stock sheet containing the explanation of the accused and there is no explanation for its non‑production. The pro secution has not also produced the Returns which were submitted after the detection of the shortage by P. W. 4 except the one relating to the month of January 1950. It is difficult for us to un derstand why the prosecution has withheld these papers and we are not in a position to come to a definite conclusion that the accused even after the shortage was detected continued to submit returns to the effect that he had the rail cut pieces with him. This witness has stated that the monthly Returns are prepared by the Store Tindel and the Permanent Way Inspector only signs it. This witness was previously a Story Tindel under P. W.

1. This fact has also been admitted by P. W. 6 Mr. M. K. Zaman who succeeded the appellant. In these circumstances, it is very difficult for us to understand how the learned Judge could come to the conclusion that the entrustment of the materials in question had been established with the appellant.

8. So far as Exh. 4 is concerned, it appears that the sugges tion on behalf of the accused was that the item relating to cut rail pieces was subsequently added in it as it appears to be the last item. This suggestion was sought to be given support on behalf of the accused with reference to Exh. C (1) which is the shortage list prepared by M. K. Zaman after he had physically verified the stock of materials. The list of shortages does not contain the item of rail cut pieces. P. W. 6 Zaman has admitted that he verified the actual stock with reference to the closing balance of the previous months' Return. If really the rail cut pieces measuring 3,016 ft. were there in the Return (Exh. 4) as claimed by the prosecution, it is difficult for us to under stand how the shortage list did not show any shortage with regard to rail cut pieces. All these clearly go to suggest that perhaps there was no such item in Exh.

4. Be that as it may, we find no basis for the learned Judge's conclusion that the appellant deliber ately showed 3,016 ft. of rails in Exh. 4 in order that his successor must accept the custody of these rails. This conclusion cannot be reached in view of the positive evidence in this case. The Return was submitted on the 26th of January 1950, whereas physical verification of the stock by M. K. Zaman had started on the 18th of January and was completed long after. In this view of the matter, no purpose would have been served by the accused deliberately showing the rails in the stock in Exh.

4. Is is therefore clear that the prosecution has not been able to prove conclusively that the accused got charge of 3,016 ft. of rails when be took over charge from S. M. Hossain nor has it succeeded in showing that the accused falsely showed the said stock in Exh.

4. In this connection reference may be made to the copy of the telegram sent by the Executive Engineer, Lalmonirhat to P. W. 6 Zaman on the 27th of October 1951, to send the charge papers between S. M. Hossain and the accused to him. P.W. 6 in his evidence has stated that he complied with this order. It is rather mysterious that after these papers were taken away from the Permanent Way Inspector's office at Bogra they have not been produced, though insisted upon by the accused. This clearly goes to show that the prosecution thought that if these papers were produced the entrustment of the 3,016 ft. of rails with the accused would stand completely disproved. We are therefore, of the opinion that the rails alleged to have been misappropriated by the accused were ever entrusted with him.

9. Coming now to question of misappropriation, we find that the evidence favours the defence more than the prosecution. We have already pointed out that it is in evidence that the appel lant was not in complete control of the materials. They were stocked in far flung places covering a distance of about 55 miles and not only the appellant but his subordinates also had access to them and they could utilise them whenever required. In this state of affairs, it is difficult for us to agree with learned Judge that it has been proved that the appellant was responsible for the disappearance or non‑existence in stock of the cut rail pieces in question.

10. The appellant made certain. remarks with regard to the shortages that were found by P. W. 6 when he took over charge from the appellant. The remarks are to the effect that the appellants had not full control over these materials and was absent for some time on leave. In these circumstances, without any proof that his explanation was untenable, it cannot be said that the accused was guilty of misappropriation. It may however be noted that so far as the rails were concerned they were not at all found to be there when P. W. 6 took over charge from the appellant.

11. The learned Deputy Legal Remembrancer has very frankly conceded that the prosecution evidence leaves consider able room for doubt with regard to both the points, namely, entrustment as well as misappropriation. He has, therefore, found it difficult to support the conviction of the appellant. In our opinion, the appellant is entitled to the benefit of doubt.

12. Before parting with this case, we want to avail ourselves of this opportunity to say a few words in regard to a point which, though not raised here, was the subject‑matter of con sideration before this Bench in the case of Md. Halim alias Md. Quyum v. Stare (P L D 1964 Dacca 240). In that case, a railway employee was tried and convicted under sections 419 and 420 of the Pakistan Penal Code by a Special Judge acting under the Criminal Law Amend ment Act. In the appeal preferred by him his learned Advocate took a point that the trial by the Special Judge was held without jurisdiction as the appellant was not a public servant in respect of offences under sections 419 and 420, Pakistan Penal Code. Reliance was placed in this connection on section 137 of the Railways Act. This argument found favour with us and we set aside the conviction and sentence. The relevant provisions of section 137 which were placed before us read as follows: "137. (1) Every railway servant shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code. (2)**************************************** (3) **************************************** (4) Notwithstanding anything in section 21 of the Indian Penal Code, a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those mentioned in subsection." Indeed, the section in its original form stood as above. This section, however, was amended in 1956 by Act XXIII of 1956 and subsections (1) and (4) alongwith subsection (2) which is not relevant for our purpose were omitted. It is thus evident that the bar which excluded railway servant from the fold of public servants except for purposes of Chapter IX of the Penal Code within which sections 409, 419 and 420 of the c Pakistan Penal Code do not fall, was removed. There cannot be any dispute that a railway servant ordinarily must be deemed to be a public servant within the meaning of section 21 of the Penal Code. This being the position, our reported decision was given under a wrong premise and cannot be said to be in conformity with position of law as it stood at the relevant time, the amendment of section 137 came to our notice after deliver y of judgment in the above case but not until we bad signed the judgment. It is unfortunate that at the hearing of the case we were deprived of the assistance which we expect from learned Advocates of this Court. We, however, take it that the learned Advocate for the appellant was unaware of the amendment and the learned Advocate for the State did not fully prepare himself to assist us.

13. Decisions of the High Court have their peculiar im portance inasmuch as they are binding on subordinate Courts and those which are given without taking note of the latest position of the law and yet are reported in Law Journals which have some circulation are likely to lead to harmful results. Judges work under certain limitations and have more often than not to depend upon the assistance they get from the Bar which is always expected to discharge its duties with some amount of thorough ness as well as candour. Be that as it may, we must point out that the decision reported in 15 D L R 282 was given without taking into consideration the amendment of section 137 of the Railways Act made by Act XXIII of 1956 and had the amendment come to our notice it would have been otherwise. This appeal is allowed ; the conviction and sentence of the appellant are set aside ; and he is discharged from his bail bond. Fine, if realised, will be refunded to him. SIKANDAR ALI, J.‑I agree. Appeal allowed.